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frame of the will creates a trust for the particular purpose of satisfying which the estate is devised, the law is the same, though the word 'trust' is not used." And again, quoting from Hill on Trustees, 65: "Thus when a gift in a will is expressed to be for the benefit of others, or to be at the disposal of the donee for herself and children, or toward her support and her family, or to enable the donee to provide for or maintain his children, 390 or where the gift is expressed to be made to the end or to the intent that the donee should apply it to certain purposes, in all these cases the terms employed have been held sufficient to fasten a trust upon the conscience of the donee, . . . . showing that in every case the general purpose and intention of the donor, and not the use of one particular term or another, will decide the question whether a party does, or does not, take in a fiduciary character." These authorities, based as they are upon sound reason and common sense, satisfy us that this will should be construed as creating a trust in the wife for the accomplishment of the purposes declared by the testator. If so, it is clear, then, that the life tenant could not sell even her life interest, unless something can be found in the instrument creating the trust which would invest the life tenant with power to sell the life estate. This renders it necessary to consider the second branch of the inquiry: (b) Is there anything in the will which invests the life tenant with power to sell the life estate? It is quite certain that there is no such express grant of power in the will, and, if such power is conferred at all, it must be by implication. The contention, as we understand it, is, that such power may be implied from the following language used in the fourth clause of the will: "At the death of my wife, I direct that all of my estate, both real and personal, that may be left after supporting the family and educating my children, shall be divided among my children"; and stress is laid upon the words which we have italicized, as implying that the testator intended and expected that some, at least, of the property should be sold. In view of the undisputed fact that some of the property left by the testator consisted of such things as would be consumable in the use, such as provisions, farming produce, horses, mules, and farming implements, it seems to us that the most natural inference to be drawn from these words would be that the testator meant all of his property except such as might be consumed in the use for which it was given-all that may be left or all that remained after it had been applied to the uses for which it was

391 intended; rather than that the testator intended by those words, by implication, to invest the life tenant with the power of sale rather a remote and strained implication by which to create so important a power as that of sale. This view is supported by the authorities cited in the argument, which need not be dwelt upon here; for even if it could be assumed that the testator intended, by the words relied upon, to invest the life tenant with power to sell, yet it is very obvious that, if such a power was conferred, it was conferred solely for the purpose of effecting the primary object of the testator-the support of the family and the education of the children—and there is no pretense that the sale was made for any such purpose; but, on the contrary, the undisputed fact is that it was made for the payment of the debts of the testator, and that every dollar of the proceeds of such sale was applied to such debts, we need not consider this point further. It was also contended that if the life estate was originally unencumbered with a trust, it terminated when the children attained their majority. We are unable to discover in the terms of the will any warrant for such a contention, and it may, therefore, be dismissed without further consideration.

3. The next general inquiry is whether the sales of the land in question can be supported by the proceedings of the court of probate for Greenville county. Passing by any other questions raised or that might be raised, in reference to the effect of these proceedings, a conclusive answer to this question is found in the fact that those proceedings do not show that any judgment or order of sale was ever made by that court; and there is no evidence aliunde tending to show that any order of sale was ever made. The record of those proceedings, as offered in evidence, was, manifestly, not complete; and, while it may be true that where a partial record does show that a final judgment was rendered by a court of competent jurisdiction, and the only defect in the record is the absence of certain steps. leading up to the judgment, the court may infer from such judgment that the 392 necessary steps to be taken before such judgment could be properly rendered had been taken. But where there is no final judgment, and the record only shows that certain steps leading up to the judgment had been taken, the fact that a judgment had been rendered cannot be inferred: Brown v. Coney, 12 S. C. 144. Indeed, the testimony aliunde in this case rather tends to show that no order of sale was ever granted by the court of probate, but that Mrs. Nannie W.

Hunter, being advised by her father, who is characterized in the circuit decree as a lawyer of high character and many years' experience at the bar, that she had authority as executrix to make the sales, abandoned the proceeding in the court of probate before it culminated in any final judgment, and made the sales as executrix, for the deeds on their face so show, and they are signed by her as executrix; and no allusion whatever is made in these deeds to any proceeding in the court of probate. It is clear, therefore, that she derived no authority to sell this land from such proceedings.

Holding these views, we cannot concur in the view taken by the circuit judge, that the action was prematurely brought, and for that reason only the complaint should be dismissed. For if, as we have seen, the life estate was given to Mrs. Hunter burdened with a trust for the support of herself and the children; and if, as we have seen, she has violated such trust by selling the land without lawful authority, then it seems clear that the plaintiffs, who are the children of the testator, have now a status in court to assert and preserve such rights as they may be found to have in the premises.

This leads us to the fourth and last inquiry in the casethe question of subrogation. In the outset, the appellants raise the point that as no such question was raised by the pleadings, it cannot be raised now. While, under the judgment which we propose to render in this case, this point becomes immaterial, yet we may say that while the word "subrogation" does not appear to have been used in the answer, yet the essential facts out of which the 393 right of subrogation arises, to wit, that the lands were sold by the executrix under a supposed authority so to do, and the proceeds of such sale were applied to the debts of the testator, and the further fact that Nannie W. Hunter was permitted to testify, without objection, that she had sold the lands and had applied the entire proceeds of such sale to the payment of the debts of the testator, might be sufficient to show that such point is not well taken. We will, therefore, proceed to consider the question of subrogation upon its merits. In 24 American and English Encyclopedia of Law, first edition, at page 258, where the writer is discussing the doctrine of subrogation, we find, as an illustration of one of the instances in which the right of subrogation arises, the following language: "So where an executor sells real estate, and uses the proceeds in the payment of debts, under a mistake of his powers, and the purchaser is ousted by the devisee, the

land, in equity, will be subjected to indemnify the purchaser to the extent to which his money was applied to the debts over and above the personal estate": See, also, 3 Pomeroy's Equity Jurisprudence, sec. 1300. But we need not go beyond the limits of our own state for authority upon this point. In Cathcart v. Sugenheimer, 18 S. C. 123, the property of a lunatic had been sold under an order of the court of common pleas, made in a proceeding instituted by the committee of the lunatic, to which the lunatic was not made a party. Subsequently, the commission of lunacy was superseded, and Cathcart, the person who had been declared a lunatic, having thus been restored to his rights as a person sui juris, brought an action to recover certain property bought by the defendant Sugenheimer, at the sale above mentioned. One of the defenses set up was that the defendant's money having gone to pay the debts of the lunatic, she had the right to be subrogated to the rights of the creditors whose debts had thus been paid by the defendant's money. The court sustained the right of subrogation. In delivering the opinion of the court, Mr. Justice McGowan uses this language: "Wherein did this sale differ from that of the property of a decedent 394 for the same purpose?" and then quotes with approval the following passage from Freeman on Void Judicial Sales, 51: "If by a sale of the lands of a decedent his debts are paid, and it turns out that the sale is void, the purchaser has the right to be subrogated to the claims which he has by his purchase paid, and he has also the right to retain possession of the property as security for the repayment of the sums to which he is entitled." That case has been recognized and followed in the recent case of Bailey v. Bailey, 41 S. C. 337, 44 Am. St. Rep. 713, 19 S. E. 669, 728. But inasmuch as the question of the defendant's right of subrogation was not, in terms, made in the pleadings, and was not considered or decided by the circuit judge, it seems to us proper to pursue the course which was adopted in the case of Bailey v. Bailey, 41 S. C. 337, 44 Am. St. Rep. 713, 19 S. E. 669, 728, and remand the case to the circuit court for the purpose of enabling that court to pass upon the question of the defendant's right to subrogation, with leave to the defendants, if they shall be so advised, to amend their answer by setting up formally their right to subrogation.

The judgment of this court is, that the judgment of the circuit court be reversed, solely upon the ground of error in holding that the complaint should be dismissed, for the reason

that the action was prematurely brought, and that the case be remanded to that court for the purpose hereinabove announced.

A SALE BY AN EXECUTOR WITHOUT AN ORDER of court under a will containing no power to him to so sell, is void: Huse v. Den, 85 Cal. 390, 20 Am. St. Rep. 232, 24 Pac. 790.

A PURCHASER AT AN INVALID SALE OF A DECEDENT'S land for the payment of debts is entitled to be subrogated, to the extent that the money paid by him was applied to the payment of such debts, to the rights of the creditors of the decedent, and to have the amount due him charged upon the land: Perry v. Adams, 98 N. C. 167, 2 Am. St. Rep. 326, and note, 3 S. E. 729.

ACTS OF TRUSTEES IN CONTRAVENTION of their trusts and the binding effect thereof upon their beneficiaries, are treated in the monographic note to Day v. Brenton, 63 Am. St. Rep. 467-477.

PEOPLE'S BANK v. BRAMLETT.

[58 S. C. 477, 36 S. E. 912.]

JUDICIAL SALES-DEFICIENCY-ABATEMENT OF BID. If land is sold at judicial sale by metes and bounds, and it subsequently appears that a portion of the land within such boundary is held by title paramount, a survey to ascertain that the bidder has not received the number of acres sold is not necessary to entitle him to an abatement of his bid.

JUDICIAL SALES-DEFICIENCY-ABATEMENT OF BID. A purchaser of land at judicial sale by metes and bounds is entitled to an abatement of his bid to cover a deficiency of land within such boundary held by title paramount.

JUDICIAL SALES-DEFICIENCY-ABATEMENT OF BID -ESTOPPEL.-A purchaser of land at judicial sale by metes and bounds is not estopped, by constructive notice of a judgment affecting the property sold, from seeking before compliance with his bid an abatement thereof for a deficiency in acreage, discovered after the sale and held by title paramount.

JUDICIAL SALES.-RULE OF CAVEAT EMPTOR does not apply to executory sales of real estate by a court of equity.

JUDICIAL SALES-DEFICIENCY-ABATEMENT OF BID. A purchaser of land sold by metes and bounds at judicial sale, before completing his contract, may seek an abatement of his bid for a deficiency in acreage, if he has done nothing creating an estoppel. JUDICIAL SALES-DEFICIENCY-ABATEMENT OF BID -EXECUTED CONTRACT.-Misrepresentation and deficiency of acreage are sufficient grounds for the abatement of a bid at a judicial sale of land sold by metes and bounds, even after the contract is executed, if no element of waiver or estoppel intervenes to prevent.

L. K. Clyde and W. H. Irvine, for the appellant.

L. O. Patterson, for the appellee.

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